In a contentious proceeding, the FCC has adopted an action intended to remove regulatory impediments to small cell deployment at the state and local level. In a Declaratory Ruling and Third Report and Order, the FCC clarifies when a state or local regulation constitutes an effective prohibition of service prohibited by Sections 253 or 332(c)(7) of the Communications Act (Act). The FCC also concludes that the Act limits state and local governments to charging fees no greater than a reasonable approximation of objectively reasonable costs for processing applications and managing deployments in right-of-ways. The FCC identifies specific fee levels for small cell deployments that presumably comply with the relevant standard and provides guidance on state and local non-fee requirements, such as aesthetics and underground deployments. The FCC also establishes two new shot clocks for small wireless facilities, 60 days for collocations and 90 days for new builds, codifies the existing 90 and 150 day shot clocks for wireless macro deployments, and concludes that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to these shot clocks. The FCC will find a failure to act within the shot clock as constituting a presumptive prohibition on the provision of services. Commissioner Rosenworcel, approving and dissenting in part, asserted that the FCC’s decision on state and local fees constitutes extraordinary federal overreach because three unelected officials, Chairman Pai, Commissioner Carr and Commissioner O’Reily, are telling state and local leaders across the country what they can do in their own backyards. Such decision, Commissioner Rosenworcel suggests, will irresponsibly interfere with existing agreements and ongoing deployments across the country. While wireless industry entities praised the FCC’s action, State and local governments reiterated their opposition and the likelihood of legal challenges.
